The D.C. applellate court declared unconstitutional the legislative effort by congress to force the US to recognize that Jerusalem is part of Israel. That they did so is not surprising, but why the Executive branch is so afraid of having Jerusalem appear next to Israel even just on a piece of paper should be shocking.

9-year-old Menachem Zivotofsky sued the U.S. government for refusing to include "Israel" alongside "Jerusalem" as his place of birth on his passport.

A federal court released its decision regarding whether it is permissible for the United States to refuse to enter “Jerusalem, Israel” on the passport of an American born in Jerusalem on Tuesday, July 23. The result was not unexpected. The court decided that a portion of the Foreign Relations Authorization Act, which congress enacted in order to allow Israel to appear alongside Jerusalem on such a passport, was an unconstitutional law. The basis for that decision was that in enacting that law, congress had impermissibly intruded upon the exclusive power of the Executive branch to conduct diplomatic relations with foreign entities.

But the surprise, and the anger – for those who disagree with the decision – should be directed at the Executive branch for its long–held position that Jerusalem is not part of Israel. And we learn in this Opinion, what is driving this long-held position. It is a fear of anger and violence if the U.S. does something to “undervalue” “Islamic rights in Jerusalem.”

Got that? The U.S. is afraid of undervaluing “Islamic rights in Jerusalem.” Perhaps the decision makers in the U.S. Department of State and all the Secretaries of State never had the opportunity to view the very important interview of Arabic Studies professor and scholar Mordechai Kedar gave to an Al Jazeera anchor. See that interview at the end of this article.

Congress sought to correct what it viewed as an incorrect decision by the Executive branch. But the judiciary branch could not allow that.

BACKGROUND

Menachem Zivotofsky was born in Jerusalem to American parents. Shortly after his birth, Zivotofsky’s parents applied for a passport for him. In the application, Zivotofsky’s mother listed his birthplace as Jerusalem, Israel.

But the U.S. State Department issued the child’s passport listing only Jerusalem – no country was listed – as his place of birth.

That year, 2002, Zivotofsky’s parents filed a lawsuit against the State Department on their son’s behalf, seeking to have a passport issued to their son which would list, as requested in the original application, Jerusalem, Israel, as the child’s birthplace.

This case has traveled up and down the federal court system, stopping in some courts more than once. It even reached the U.S. Supreme Court where a subsidiary issue was heard two years ago, before being sent back down the court system for further development.

The Court of Appeals for the D.C. Circuit declared unconstitutional a portion of the 2002 Foreign Relations Authorization Act which would permit a passport to be issued listing as the place of birth Jerusalem, Israel for Zivotofsky and others in his position.

This is the relevant portion of the FRAA which the court declared unconstitutional:

(d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES. For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen’s legal guardian, record the place of birth as Israel.

What the court did was – not surprisingly, even if one disagrees with the result – rule that congress exceeded its powers by passing legislation which, the court found, wrongly interferes with matters over which it does not have ultimate authority. That exclusive authority instead rests with the Executive branch. The power to recognize the sovereignty of another country and to determine foreign policy, is one of the powers which the U.S. government’s separation of powers doctrine grants to the Executive branch.

What is significant about this case is not that the Court of Appeals has ruled that Jerusalem is not part of Israel.

The more interesting question is why the Executive branch is so set against even something so small as to allow a child’s passport to state that when a child was born in Jerusalem, he was also born in the country of Israel.

The D.C. court noted that it has always been the position of the Executive branch to remain neutral on the question of who has sovereignty over Jerusalem. It quotes from the State Department’s Foreign Affairs Manual which was in effect in 2002, when Menachem Zivotofsky was born and when his parents sought to have his passport list Jerusalem, Israel as his birthplace. The FAM explicitly states that, “for an applicant born in Jerusalem: ‘Do not write Israel or Jordan’ on his passport.” It also states that “Israel ‘[d]oes not include Jerusalem.'”

SAME ISSUE AS IN THE JERUSALEM EMBASSY ACT

In Zivotofsky, the court treated the Foreign Relations Authorization Act, passed in 2002, the way the Jerusalem Embassy Act has been treated, in other words: “no dice.”

But what is perhaps the most interesting portion of the opinion – for people who like this kind of thing – is the court’s discussion of what was animating the passage of the Foreign Authorization Act, and then a peek into why congress believed it was forced into taking this action.

WHAT ANIMATES THE EXECUTIVE BRANCH’S HOSTILITY TO STATING JERUSALEM IS IN ISRAEL

“Our reading of section 214(d) as an attempted legislative articulation of foreign policy is consistent with the Congress’ characterization of the legislation,” the Opinion states.

Yes, that wily rogue congress was, through the FRAA, attempting to “alter United State policy toward Jerusalem.” The Opinion quotes snippets of statements made by members of congress during the hearings on the legislation. Rep. Tom Lantos, Senator Jesse Helms, Rep. Diaz-Balart, and Rep. Henry Hyde all stated that the FRAA was an effort to force the United States to recognize that Jerusalem is part of Israel.

But why is the Executive branch so dead set against recognizing that Jerusalem is the capital of Israel? That question is answered in Tuesday’s Opinion, as well. The Secretary of State responded to questioning during the discovery phase of the litigation. The Secretary addressed the reason the Foreign Affairs Manual is so explicit and so emphatic about not including Israel as the country in which Jerusalem is located:

Any unilateral action by the Untied States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.

and

The Palestinians would view any United States change with respect to Jerusalem as an endorsement of Israel’s claim to Jerusalem and a rejection of their own. [emphasis added by the court] Thus, ‘within the framework of this highly sensitive, and potentially volatile mix of political, juridical and religious considerations, U.S. Presidents have consistently endeavored to maintain a strict policy of not prejudging the Jerusalem status issue and this not engaging in official actions that would recognize, or might be perceived as constituting a recognition of, Jerusalem as either the capital city of Israel, or as a city located within the sovereign territory of Israel.” [emphasis added by the court]

And just to be clear about which party is the one the Executive branch is fearful of offending, the court again quotes testimony provided by the Secretary of State at an earlier stage of the litigation, who reported that “various Palestinian groups issued statements asserting that Section 214(d) ‘undermined the role of the U.S. as a sponsor of the peace process,”undervalued … Palestinian, Arab and Islamic rights in Jerusalem” and”raised questions about the real position of the U.S. administration vis-à-vis Jerusalem.’

And with that, the court rejects the relevant portion of the FRAA as a conscious effort of the congress to usurp a “considered exercise of the Executive branch’s recognition power.”

International law expert and legal professor Eugene Kontorovich explained to The Jewish Press, “The response of the U.S. government to the Zivotofsky claims really presents a much larger problem, which is the complete refusal of the U.S. to recognize Jerusalem as part of Israel at all. Even if this lawsuit was resolved satisfactorily for Zivotofsky, it still would not address that underlying problem.”

“The Jerusalem exception also illustrates the ease with which U.S. foreign policy can bend in the face if Islamic intimidation – even to the point of adopting a surreal and counterfactual policy,” Kontorovich continues. “Yet the possibility of peace with the Palestinians would depend on robust American guarantees to stand by Israel if the going got tough. The unwillingness to accede to reality on such a basic and longstanding truth does not auger well for this.”

About the Author:Lori Lowenthal Marcus is a contributor to the JewishPress.com. A graduate of Harvard Law School, she previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools. You can reach her by email: Lori@JewishPressOnline.com

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At San Remo on April 25, the Principal Allied War Powers decided the competition between the Arabs and the Jews over the political rights for Palestine. They decided to recognize the World Jewry as the owner of those political rights. The 51 nation members of the League of Nations confirmed that decisionin 1922, limiting it to Palestine west of the Jordan River. That made it International Law. But in 1924 the US and the UK entered into a treaty, the Anglo-American Convention of 1924. That made it domestic law, enforceable by the plaintiff in this action.
See: http://www.think-israel.org/brand.allegedoccupation.html I hope this opportunity is not lost to claim US domestic treaty law in favor of the plaintiff in this action. This should go to the Court of Appeals and the Supreme Court for their decision on this question.

The San Remo Resolution was approved on April 25, 1920. The minutes of the meeting show that the French tried to include in the savings clause for non-Jewish communities, "political rights" as well as the religious and civil rights that had been saved in the Balfour Declaration. The other members of the Principal Allied War Powers rejected the amendment and the French were satisfied with a side agreement, a process verbal that instead showed agreement of the parties on the proposition that the words of the savings clause would ensure that the non-Jewish communities would not be forced to surrender any rights. That all could agree on because the Arabs residing in Palestine never had or exercised any political rights. For the 400 years prior to the San Remo Resolution, they had been ruled by the Turks from Constantinople and had no vote in the legislation or its enforcement in Palestine. Of the peoples in Palestine, only the Jews had ever ruled from within the boundaries of Palestine, Dan to Beersheba or one of the other Biblical formulations.

It is time really time muslims got out of Jerusalem or at least claimed it their own. The ignorance of the US with reference to historical facts is unbelievable. Jerusalem for as long as civilization has existed was always the capital of Israel or to be absolutely correct Judeah and the Kingdom of Judean & Israeli Kings. This crap is an invention by the so called Palestinians who according to history never occupied Jerusalem. The strip of land before defeat 3000 years ago, was Philistine, Gaza being a small city just beyond the borders of Philistine in Judean territory, during the Roman Empire just under 2,000 yrs ago renamed Palestine. The Ottoman Empire, ceasing just after WWI comprised of Turks, Arabs and others who adopted Islam. Jerusalem was a spoil of war as late as the 12th Century CE, at the time of Richard 1st Henry IV & V and early days of Popes in Rome. Jerusalem is not Arabic never has been and ABBAS and his cronies need to learn to live along side Secular Israel or emigrate, both he and Arafat have stacked away millions of $ in aide money. This little boy was born in Jerusalem, Israel, as any NY might be born in NY, NY United States of America.

We eagerly await the follow-up briefing by Nathan Lewin & Co. and next round in the U.S. Supreme Court. Meanwhile, the inclusion of the Mordechai Kedar interview was priceless! It's the way we ALL need to address this issue. Directly. VERY directly. And without equivocation.

We eagerly await the follow-up briefing by Nathan Lewin & Co. and next round in the U.S. Supreme Court. Meanwhile, the inclusion of the Mordechai Kedar interview was priceless! It's the way we ALL need to address this issue. Directly. VERY directly. And without equivocation.

Remember, every president of the United States has been appointed by Lucifer, so why would you think the USA will be fair to God's nation? (Luke 4) No nation will be and that is why all the nations, including the USA if it still exists, will be destroyed by God as they attack Jerusalem. Ezekiel 38, Joel 3

Joel 3:14 Multitudes, multitudes in the valley of decision: for the day of the Lord is near in the valley of decision. The sun and the moon shall be darkened, and the stars shall withdraw their shining. The Lord also shall roar out of Zion, and utter his voice from Jerusalem; and the heavens and the earth shall shake: but the Lord will be the hope of his people, and the strength of the children of Israel.

17 So shall ye know that I am the Lord your God dwelling in Zion, my holy mountain: then shall Jerusalem be holy, and there shall no strangers pass through her any more. And it shall come to pass in that day, that the mountains shall drop down new wine, and the hills shall flow with milk, and all the rivers of Judah shall flow with waters, and a fountain shall come forth out of the house of the Lord, and shall water the valley of tim.

19 Egypt shall be a desolation, and Edom shall be a desolate wilderness, for the violence against the children of Judah, because they have shed innocent blood in their land. But Judah shall dwell for ever, and Jerusalem from generation to generation.

21 For I will cleanse their blood that I have not cleansed: for the Lord dwelleth in Zion.

The Zionists on here are doing everything to delegitimize the Palestinians. It is not working anymore. Things are starting to happen worldwide showing the world is very sick of Israel. There are going to be many, many more. Netanyahu goes it alone in attacking Iran, if the messianic coward dares. Then we will see how Israel does.

The United States of America has ruled on the issue, as related above. They have taken a “side.” It is perfect.

1) This was a courageous, brave, and righteous decision on the part of the Executive Branch. The law, as quoted above, is unbiased. It means that no matter who, Palestinian or Jew, born in Jerusalem will have no further designation listed on their pastport.

2) This protects THE United States of America (not interests, but the land itself, as it should. It means that because the ownership is in an unresolve contestment of ownership, the United States of America will NOT take a side.

3) This decision also protects the world, as it should. This means that because the United States of America will not take a position, the responsibility for working this out, goes right back some 7,000 miles across land and sea to the two parties directly involved to allow them to work it out.

Whether intended or otherwise: brillant.

I my opinion, just one small change should settle the whole dispute and bring peace.

When the soldiers returned from conquering the land and found that no soldier had been lost, they gave a gift to the treasury of God in thanksgiving to God.

We have all been given this beautiful world. It is time to give God a gift of thanksgiving.

There are three, one God religions; all are waiting for the same Messiah.

I think, if it pleases God, God willing, that we should clear out Jerusalem, to its borders. This should allow room to accommodate masses of people.

We should establish Jerusalem as belonging to the world, as a peace offering; and, we should give the Temple Mount to God as a thanksgiving offering, an offering most satisfying.

This is were the Messiah will be found, busy doing our father’s work.

From this moment on: pray, prepare, and await in glad expectation, the coming of our Lord. Praise God. Happy are those that are called to his supper. Ashes, sackcloth, and great wailing and nashing of teeth to those who are not.

You're delusional and you believe only what you wish. In fact, it is the Palestinians that the whole world is getting sick and tired of. Including their fellow Arabs. All they do is complain, pocket the tons of money given to them (stupidly) by the Europeans, try to attack and kill Jews at every opportunity, and refuse to go back to the negotiation table. They behave like entitled spoiled brats, and they don't make any effort of their own to help end the stalemate they themselves have caused in the first place. Time to wake up from your self-induced stupor, Robert.

That's an excellent point to remind people of, Esteban. If Jerusalem is not the official capital of the sovereign state of Israel, what is Kerry doing going over there every week or so? If he was consistent, he would set up camp in Tel Aviv. Of course then he couldn't meet any official since they're all in Jerusalem (because that's the capital, duh), and they have better things to do than commuting between the two cities for the dubious privilege of meeting with our hamster-in-chief.

Here is a more succinct statement of why the Zivotofsky decision is mistaken.

The predicate for the July 23 decision of the US Court of Appeals for the District of Columbia is wrong. It says:

"The status of the city of Jerusalem is one of the most contentious issues in recorded history. For more than two.
millennia, the city has been won and lost by a host of sovereigns. The controversy continues today as the state of.
Israel and the Palestinian people both claim sovereignty over the city. It is against this background that the dispute in this case arises. Since the middle of the twentieth century, United States Presidents have taken a position of strict neutrality on the issue of which sovereign controls Jerusalem." Zivotofsky v. Clinton CADC July 23, 2013.

This predicate is mistaken. The controversy does not continue today. That controversy concerning the sovereignty over Palestine was res judicata as of April 25, 1920. First, President Coolidge executed the Anglo-American Convention of 1924 that approved the adoption of the British Balfour Policy in the San Remo Resolution. The latter recognized World Jewry's ownership of a beneficial interest in the political rights to Palestine. The beneficial interest was a prelude to a legal interest intended to vest when the Jewish population attained a majority in the area to be governed and the Jews were deemed capable of exercising sovereignty. Both of these standards were met by 1950 after the British had abandoned their trusteeship over those political rights in 1948. This controversy was decided by the Principal Allied War Powers at San Remo on April 25, 1920 and is now res judicata. This decision was confirmed in 1922 by the League of Nations limited to all of Palestine west of the Jordan River. It was also confirmed by the United States in a joint resolution of Congress in 1922 , and in a Treaty signed by President Coolidge in 1924 The recognition in this treaty survives the treaty's termination and the demise of the League of Nations under 1. Article 80 of the UN Charter, 2. The Doctrine of Acquired Rights, now codified and 3, the Doctrine of Estoppel. Under the latter doctrine Secretary Clinton is estopped from contesting the recognition of World Jewry as the owner of the political right to Palestine west of the Jordan adopted by the Principal Allied War Powers in 1920 because the United States recognized that ownership in 1924.

Second, everyAmerican President after Jimmy Carter, except for Barack Obama, took the position that Jewish settlements in Judea and Samaria were not illegal. They did disapprove of Jewish settlements, but that was because they thought settlements would discourage negotiations over a peace treaty.

It can be said the controversy continues today only because the Arabs residing in Palestine continue to try to take the political or national rights to Palestine away from the Jews by threats of violence and actual violence. When the Mafia tries to take property from others in this countruy, we refer to it not as controversy but as extortion.

Here is a more succinct statement of why the Zivotofsky decision is mistaken.

The predicate for the July 23 decision of the US Court of Appeals for the District of Columbia is wrong. It says:

"The status of the city of Jerusalem is one of the most contentious issues in recorded history. For more than two.
millennia, the city has been won and lost by a host of sovereigns. The controversy continues today as the state of.
Israel and the Palestinian people both claim sovereignty over the city. It is against this background that the dispute in this case arises. Since the middle of the twentieth century, United States Presidents have taken a position of strict neutrality on the issue of which sovereign controls Jerusalem." Zivotofsky v. Clinton CADC July 23, 2013.

This predicate is mistaken. The controversy does not continue today. That controversy concerning the sovereignty over Palestine was res judicata as of April 25, 1920. First, President Coolidge executed the Anglo-American Convention of 1924 that approved the adoption of the British Balfour Policy in the San Remo Resolution. The latter recognized World Jewry's ownership of a beneficial interest in the political rights to Palestine. The beneficial interest was a prelude to a legal interest intended to vest when the Jewish population attained a majority in the area to be governed and the Jews were deemed capable of exercising sovereignty. Both of these standards were met by 1950 after the British had abandoned their trusteeship over those political rights in 1948. This controversy was decided by the Principal Allied War Powers at San Remo on April 25, 1920 and is now res judicata. This decision was confirmed in 1922 by the League of Nations limited to all of Palestine west of the Jordan River. It was also confirmed by the United States in a joint resolution of Congress in 1922 , and in a Treaty signed by President Coolidge in 1924 The recognition in this treaty survives the treaty's termination and the demise of the League of Nations under 1. Article 80 of the UN Charter, 2. The Doctrine of Acquired Rights, now codified and 3, the Doctrine of Estoppel. Under the latter doctrine Secretary Clinton is estopped from contesting the recognition of World Jewry as the owner of the political right to Palestine west of the Jordan adopted by the Principal Allied War Powers in 1920 because the United States recognized that ownership in 1924.

Second, everyAmerican President after Jimmy Carter, except for Barack Obama, took the position that Jewish settlements in Judea and Samaria were not illegal. They did disapprove of Jewish settlements, but that was because they thought settlements would discourage negotiations over a peace treaty.

It can be said the controversy continues today only because the Arabs residing in Palestine continue to try to take the political or national rights to Palestine away from the Jews by threats of violence and actual violence. When the Mafia tries to take property from others in this countruy, we refer to it not as controversy but as extortion.

One last word. It is a basic principal of Constitutional Law that you do not decide Constitutional issues if you can avoid them. My solution would avoid the Constitutional issue. The Court ruled that the recognition power resides exclusively in the President. We show that President Coolidge exercised that power in favor of Jewish ownership of the political rights to Palestine, i.e. sovereignty over at least all of Palestine west of the Jordan River. Once the recognition power has been exercised, it can;t be changed according to the doctrine of acquired rights. A nation that has recognized a sovereign over a designated area, can be estopped from denying that recognition.